ESKOM HOLDINGS LIMITED

INVITATION TO TENDER

Subject

Eskom Office Roof Top PV Plant, Sunilaws

Date

July 2014

TENDER NUMBER

XXXX

Appendix F: Facility Performance Guarantees

1.1

Defect Warranty

1.1.1

Warranty Periods for key Components

COMPONENT

WARRANTY
(Years)

Inverters

Mounting & Support Frame

10

PV Panels

10

DC Cables

1.1.2

In addition to the Defects Warranty, the Contractor warrants to maintain and replenish
to its original level The Employer's Spare Parts Stock during the Defects Period, at its
cost and expenses.

1.1.3

The Defects Period for the EPC contract shall be two (2) years.

1.1.4

The Defects Period for the EPC contract expires with the issuance of the Final
Acceptance Certificate upon completion of the Final Acceptance Test as described in
the Works Information Document.

APPENDIX F - FACILITY PERFORMANCE GUARANTEES

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1.2

Solar PV Facility Capacity Warranty

1.2.1

Nominal Installed Capacity is defined as the nominal installed capacity contracted under
this Contract for the Solar PV Facility, measured in kWp.

1.2.2

The Flash Test certificates, which are produced by the manufacturer of the PV Modules
and delivered by the Contractor along with each PV Module delivered to the Site, shall
be assessed by the Employer and the Contractor to determine whether the sum of the
Flash Test capacities (the Actual Installed Capacity) is equal to or higher than the
Nominal Installed Capacity.

1.2.3

In the event that the sum of all such Flash Test capacities is below the Nominal Installed
Capacity, The Employer shall have the right to:
a)

Request in writing that the Contractor replaces any affected PV Modules of the
Facility until the Nominal Installed Capacity is reached, taking all necessary actions
and at the expense of the Contractor. Such replacement shall take place as soon as
reasonably possible and, in any event, no later than forty-five (45) Business Days
from The Employers written request. Any such replacement shall not indemnify
the Contractor from any obligations they may have to pay liquidated damages for
any delays, which may have risen under this Contract; or

b)

Request and be granted price reductions or reject the Solar PV Facility in

accordance with the following provisions:
i)

If the Employer has notified the Contract pursuant to Clause 1.2.3 a) above
and the Contractor has failed to reach the Nominal Installed Capacity within
the maximum period of forty-five (45) Business Days specified within Clause
1.2.3 a) above, then the Employer shall have the right to reduce the EPC Price
for the affected Facility:
aa)
in the case of a Nominal Installed Capacity Shortfall Percentage1 of
up to two percent (2%), by reducing the EPC Price by one percent (1%) for
each one percent (1%) of Nominal Installed Capacity Shortfall Percentage or
any proportional fraction of it; and
bb)
in the case of a Nominal Installed Capacity Shortfall Percentage of
more than two percent (2%) up to ten percent (10%), reducing the EPC Price
by one point two five percent (1.25%) for each one percent (1%) of Nominal
Installed Capacity Shortfall Percentage or any proportional fraction of it.
!"#$%&'()*+,_+./01 = 3456, 48'%"*+,
If
0 < 3456, 0.02

Nominal Installed Capacity Shortfall Percentage means each one percent (1%) or proportional fraction of it, by
which the Actual Installed Capacity of the Solar PV Facility is below the Nominal Installed Capacity.

APPENDIX F - FACILITY PERFORMANCE GUARANTEES

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Or
!"#$%&'()*+,_+./01 = 3456, 48'%"*+, 1.25
If
0.02 < 3456, 0.1
Where:
ReductionEPC_Parice = The EPC Price Reduction
PriceEPC

= The EPC Price under the Contract

3456, = !" #!"

Where:
SPNIC = The Nominal Installed Capacity Shortfall Percentage; here
expressed in decimal number format, e.g. 0.01123 if 1.123%

ii)

AIC

= The Actual Installed Capacity of the Solar PV Facility

NIC

= The Nominal Installed Capacity of the Solar PV Facility

In the event that the Nominal Installed Capacity Shortfall Percentage is more
than ten percent (10%), The Employer shall have the right to terminate the
Contract in accordance with the provisions within Article XX of the Contract.

1.3

Delay Liquidated Damages

1.3.1

The Contractor guarantees to the Employer that the date of Substantial Completion Date
during Project Construction and Commissioning. Delay liquidated damages will be
applied if the Contractor is not able to achieve the guaranteed substantial completion
date and if such delay is not caused by events attributable to the Employer, third
party/ies, grid operator and force majeure events.

1.3.2

Delay liquidated damage corresponds to 0.1% of EPC price for every one (1) day delay
beyond the guaranteed substantial completion date.

1.3.3

In the event that the delay liquidated damage Percentage is more than ten percent
(10%), The Employer shall have the right to terminate the Contract in accordance with
the provisions within Article XX of the Contract.

APPENDIX F - FACILITY PERFORMANCE GUARANTEES

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1.4

Performance Warranty Performance Liquidated Damages

1.4.1

The Contractor guarantees to The Employer that the electric output of the Plant during
the 24-month period between Substantial Completion (Issuance of Provisional
Acceptance Certificate) and Final Completion (issuance of Final Acceptance
Certificate), (the Performance Warranty Period) shall achieve the Guaranteed
Performance (the Performance Warranty).

1.4.2

The Guaranteed Performance is defined as the Performance Ratio contracted under this
contract for the Facility and Performance Ratio will be verified according to the
evaluation methodology presented under Inspection, Test and Commissioning section
of Work Information Document.

1.4.3

Subject to Clause 1.4.6, the following calculations shall be made, on the basis of the
data collected at the Meter installed at connection point, and by the measurement
devices described in the Works Information Document. If, at the end of the
Performance Warranty Period, the actual performance ratio of the Plant is less than the
Guaranteed Performance but is greater than the Minimum Performance, the Contractor
shall pay to The Employer liquidated damages (the Performance Liquidated Damages),
calculated at a rate of 2% of the EPC Price for each 1 percentage points by which the
Plant fails to achieve the Guaranteed Performance. Where failure to achieve the
Guaranteed Performance results in a failure that is a proportion of a whole percentage
point, the relevant Performance Liquidated Damages amount shall be calculated in an
equal proportion.
%&'1.().*+,01 = -4!./+.+,0111_234 4!234 7 48'%"*+, 0.02
Where:
LDperformance = The Performance Liquidated Damages
4!./+.+,0111_234 =
The Guaranteed Performance Ratio of the Solar PV Facility
under the Contract (if guaranteed PR is 78.5%, then the value of
4!./+.+,0111_234 shall be 78.5)
4!234

= The Confirmed Final Performance Ratio of the Solar PV Facility as

measured by the Final Acceptance Test before Final Completion (if
measured PR during FAT is 77.5% then 4!234 shall be 77.5)

PriceEPC

= The EPC Price under the Contract

1.4.4

The relevant invoice can be issued immediately after determination of the damages and
the Contractor shall pay the invoiced amount to The Employer within 10 business days.

1.4.5

Any hours (or portions thereof) during which the electrical output of the Plant is not
available as a result of:

any failures of the grid coupled with the disconnection of the inverters and/or
affecting the Monitoring System;

any inactivity of the Plant caused by The Employer, third parties, Force Majeure
Event or, in any event, not attributable to the Contractor; and

APPENDIX F - FACILITY PERFORMANCE GUARANTEES

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shall not be considered for the purpose of the Performance Warranty. Accordingly, with
regards to the Guaranteed Performance, if the duration of such events exceeds the limit
of 5 calendar days per year, then the Performance Warranty Period will be extended for
an equivalent period of time equivalent up to a limit of 30 calendar days per year (not
exceeding a maximum of 60 calendar days). During this time, new data will be recorded
for the purpose of the Performance Warranty.

1.4.6

Subject to The NEC3 Engineering and Construction Contract, the total amount of
Performance Liquidated Damages shall not exceed 10% of the EPC Price; beyond this
The Employer shall be entitled to reject the Plant and the maximum amount of
Performance Liquidated Damages becomes payable.

1.4.7

Exclusion from the Warranties The Contractor shall not be liable for the breach of the
warranties provided by this Contract, provided that such breaches are caused by:

Changes, repairs or incorrect operation by The Employer or its Subcontractors not

expressly authorised in writing by the Contractor, its Subcontractors and the third
parties appointed by The Employer;

Repairs or replacements that may be necessary because of misuse or negligent use

of the equipment by the Employer or its Subcontractors;

Use of materials, schemes or designs supplied or stipulated by The Employer or its

Subcontractors and not validated by the Contractor or which do not conform to the
Contractor's operation and maintenance manuals or technical instructions; or

Failure of the Employer or its Subcontractors to observe the operating and

maintenance instructions provided by the Contractor in the operation and
maintenance manual, or the use of the equipment other than in the conditions listed
in the Technical Design.

APPENDIX F - FACILITY PERFORMANCE GUARANTEES

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